1-07-0483
FIRST DIVISION
February 11, 2008
No. 1-07-0483
GRAHAM F. THOMPSON, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 05 CH 01592
)
THE RETIREMENT BOARD OF THE POLICEMEN’S )
ANNUITY AND BENEFIT FUND OF THE CITY OF )
CHICAGO, TIMOTHY J. BROPHY, Recording )
Secretary; JOHN J. GALLAGER, Acting )
Executive Director, ) The Honorable
) Thomas P. Quinn,
Defendants-Appellees. ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
The plaintiff in this case, Graham Thompson, filed a
petition for administrative review, seeking review of an annuity
determination by the Retirement Board of the Policemen's Annuity
and Benefit Fund of the City of Chicago (Retirement Board).
Thompson alleges the Retirement Board erred by denying him
benefits pursuant to section 5-129.1(a) of the Illinois Pension
Code (Pension Code) (40 ILCS 5/5-129.1(a) (West 2006)) and said
denial resulted in Thompson's benefits being diminished and
impaired. The trial court denied Thompson's petition for review,
finding the Retirement Board did not apply section 5-129.1(a)
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because that section was not applicable to Thompson and, thus, no
diminishment or impairment occurred. For the reasons that
follow, we affirm.
BACKGROUND
Some history on the imposition of a mandatory retirement age
to Chicago police officers is in order. Prior to 1983, the
mandatory retirement age for Chicago police officers was 63. In
1983, the Age Discrimination in Employment Act of 1967 (ADEA) (29
U.S.C. §621 (1982)) was applied to state law enforcement
officials (Equal Employment Opportunity Comm'n v. Wyoming, 460
U.S. 226, 75 L. Ed. 2d 18, 103 S. Ct. 1054 (1983)). See Miller
v. Retirement Board of Policemen's Annuity & Benefit Fund of the
City of Chicago, 329 Ill. App. 3d 589, 592 (2001). As a result,
the mandatory retirement age for Chicago police officers rose to
70 years of age, the maximum age to which ADEA protection applied
at that time. See Minch v. City of Chicago, 363 F.3d 615, 618
(7th Cir. 2004); Miller, 329 Ill. App. 3d at 592. In 1986, the
United States Congress amended the ADEA to allow state and local
governments to reinstitute a mandatory retirement age (1986
federal legislation). 29 U.S.C. §623(j) (Supp. 1991); see
Miller, 329 Ill. App. 3d at 592. In response, in 1988 Chicago
reinstituted a mandatory retirement age of 63 years for police
officers. Miller, 329 Ill. App. 3d at 592. Pursuant to a sunset
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provision in the 1986 federal legislation, the exemption
permitting the reinstatement of a mandatory retirement at the age
of 63 expired in 1993. See Minch, 363 F.3d at 619; Age
Discrimination in Employment Amendments of 1986, Pub. L. No. 99-
592, §3(b), 100 Stat. 3342, 3342 (October 31, 1986). As a
result, the City of Chicago was compelled to drop the mandatory
retirement age of 63, imposed on police officers. Minch, 363
F.3d at 619. In 1996, Congress reinstated the exemption
provision regarding a mandatory retirement age, with no sunset
clause, and made it retroactive to the expiration of the 1986
federal legislation. See Minch, 363 F.3d at 619. On May 17,
2000, the Chicago city council adopted a mandatory retirement
ordinance reinstating the mandatory retirement age of 63 years
for its uniformed police officers, effective December 31, 2000.
See Minch, 363 F.3d at 620-21.
In June 1995, Graham Thompson began his career as a patrol
officer at the age of approximately 53½ years.
The Policemen's Annuity and Benefit Fund of the City of
Chicago is created by the Pension Code (40 ILCS 5/5-101 et seq.
(West 2002)) and provides benefits to retired Chicago police
officers. See Miller v. Retirement Board of Policemen's Annuity
& Benefit Fund, 329 Ill. App. 3d 589, 592, 771 N.E.2d 431 (2002).
The Retirement Board is responsible for the administration of the
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fund. Miller, 329 Ill. App. 3d at 592.
Generally, an annuity for Chicago police officers is
determined through an application of the Pension Code to the
number of years an individual has been a Chicago police officer.
Section 5-128 of the Pension Code (40 ILCS 5/5-128 (West 2006))
provides:
"When a future entrant withdraws from
service, his age and service annuity shall be
fixed as of the date of withdrawal. The
annuity shall be that provided from the
entire sum to his credit for age and service
annuity on the date he withdraws from service."
For those officers that became subject to mandatory
retirement under the Chicago ordinance passed on May 17, 2000,
section 5-129.1(a) of the Pension Code may determine the
calculation of their annuity:
"In lieu of any annuity provided in the
other provisions of this Article, a policeman
who is required to withdraw from service on or
after January 1, 2000 due to attainment of
mandatory retirement age and has at least 10
but less than 20 years of service credit may
elect to receive an annuity equal to 30% of
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average salary for the first 10 years of
service plus 2% of average salary for each
completed year of service or fraction thereof
in excess of 10, but not to exceed a maximum
of 48% of average salary." 40 ILCS 5/5-129.1(a)
(West 2006).
As his sixty-third birthday approached, Thompson asked the
Retirement Board to consider calculating his annuity pursuant to
section 5-129.1(a) because when he was hired, neither the
mandatory retirement age nor section 5-129.1(a) existed. The
Retirement Board did not apply section 5-129.1(a) to the
calculation of Thompson's annuity because he would not have at
least 10 years of service credit when he was forced to retire.
Thompson turned 63 years old on November 3, 2004. He
retired on that date. At the time of his retirement, Thompson
had been a Chicago police officer for nine years and just shy of
five months.
On December 6, 2004, Thompson filed a petition for
administrative review (No. 04 CH 20183) in the circuit court of
Cook County. The petition alleged the Retirement Board failed to
apply the correct section of the Pension Code, specifically,
section 5-129.1, when it calculated Thompson's annuity. The
petition also requested the transcript of the meeting in which
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Thompson's annuity was determined.
On January 26, 2005, Thompson filed a second petition for
administrative review (No. 05 CH 01592) in the circuit court of
Cook County. This petition requested the Retirement Board
prepare and file the complete transcript regarding its decisions
of December 23, 2004. This petition also alleged the Retirement
Board failed to correctly apply section 5-129.1 of the Pension
Code to Thompson and failed to correctly calculate his annuity.
The two petitions were assigned to the same judge and moved
forward as one matter.
On November 21, 2006, Thompson filed a memorandum in support
of his petition for administrative review. The memorandum
alleged the Retirement Board failed to correctly calculate his
annuity, thereby denying him benefits guaranteed by section 5-
129.1 of the Pension Code. Thompson alleged because he was
"forced" into retirement with less than 10 years as a police
officer, he should receive a special exemption and be granted the
same benefits as an officer who had achieved the 10-year
benchmark.
In the alternative, Thompson requested that if the circuit
court affirmed the Retirement Board's decision, the Retirement
Board be ordered to define and set out the calculations it used
to arrive at the annuity Thompson was awarded. Thompson believed
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that as his service as a Chicago police officer was approximately
94% of the 10-year benchmark, he should have been awarded an
annuity that was 94% of what he would have received had he
reached the 10-year benchmark. Thompson's calculation of that
amount did not match the annuity calculated by the Retirement
Board.
In a January 22, 2007, order, the trial court found section
5-129.1(a) of the Pension Code did not apply to Thompson because
he had not attained at least 10 years of service credit before
his retirement. Consequently, the court found the Retirement
Board correctly applied section 5-128 of the Pension Code to
Thompson, as a police officer who retired with less than 10 years
of service credit. The court ordered the Retirement Board to
produce documentation to Thompson describing how his annuity was
calculated.
A timely appeal was filed.
ANALYSIS
Thompson alleges the Retirement Board erred in denying him
retirement benefits pursuant to section 5-129.1(a) of the Pension
Code because benefits should not be diminished or impaired and,
without elaborating, asserts section 5-129.1(a) as amended
diminished and impaired the benefits he would have otherwise
received.
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I. Standard of Review
We begin with the governing standard of review, an issue the
parties dispute. Thompson asks this court to review the circuit
court's denial of his petition for administrative review for an
abuse of discretion. The Retirement Board initially contends the
determination of Thompson's benefits involves a mixed question of
law and fact and should be reviewed for clear error.
"When deciding an appeal from a judgment in an
administrative review proceeding, the appellate court reviews the
administrative agency's decision, not the trial court's
decision." Roszak v. Kankakee Firefighters' Pension Board, 376
Ill. App. 3d 130, 138, 875 N.E.2d 1280 (2007). A mixed question
of law and fact requires an examination of whether the
administrative agency properly applied facts to undisputed law
and is reviewed for clear error. City of Belvidere v. Illinois
State Labor Relations Board, 181 Ill. 2d 191, 205, 692 N.E.2d 295
(1998).
However, this case does not present a mixed question of law
and fact. The parties agree as to the relevant facts: Thompson
was a Chicago police officer for less than 10 years and is
entitled to an annuity. The parties also agree the Pension Code
governs the calculation of Thompson's annuity.
Because the facts are not disputed and the Retirement Board
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is charged with interpreting the Pension Code, the issue on
appeal is whether the Retirement Board correctly interpreted the
relevant law, that is, whether section 5-128 or 5-129.1(a) of the
Pension Code controlled the outcome. Because that determination
depends on statutory construction, we apply a de novo standard of
review, as the Retirement Board asserts in the alternative.
Gruchow v. White, 375 Ill. App. 3d 480, 482, 874 N.E.2d 921
(2007).
II. Application of Section 5-129.1(a)
"The primary object of statutory construction is to give
effect to the true intention of the legislature." Holland v.
City of Chicago, 289 Ill. App. 3d 682, 685-86, 682 N.E.2d 323
(1997). "Legislative intent is best determined from the language
of the statute itself, which if unambiguous, should be enforced
as written." General Motors Corp. v. State of Illinois Motor
Vehicle Review Board, 224 Ill. 2d 1, 13, 862 N.E.2d 209 (2007).
"A statue is ambiguous if it is subject to two or more reasonable
interpretations." General Motors Corp., 224 Ill. 2d at 13. If
there is a reasonable debate as to the meaning of the statute,
this court will give deference to the Retirement Board's
interpretation, though its interpretation is not binding. See
General Motors Corp., 224 Ill. 2d at 13 ("the construction of a
statute by an agency charged with its administration will be
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given deference where there is a reasonable debate about the
meaning of the statute"). "The language of the statue should be
examined as a whole, with each section considered in relation to
one another." Metropolitan Water Reclamation District of Greater
Chicago v. Civil Service Board of the Metropolitan Water
Reclamation District of Greater Chicago, 358 Ill. App. 3d 347,
353, 832 N.E.2d 835 (2005).
Section 5-129.1(a) of the Pension Code applies to police
officers who reach the mandatory retirement age and have "at
least 10 but less than 20 years of service credit." We find no
ambiguity in the minimum service needed to trigger the
application of the section. Though Thompson reached the
mandatory retirement age, he did not have "at least 10" years of
service credit at the time of his retirement. Because Thompson
had less than 10 years of service credit upon retirement, the
Retirement Board did not apply section 5-129.1(a) in determining
Thompson's annuity. The Retirement Board calculated Thompson's
annuity pursuant to section 5-128 of the Pension Code.
We agree, as Thompson contends, that the Pension Code should
be liberally construed. See Johnson v. Retirement Board of the
Policemen's Annuity and Benefit Fund, 114 Ill. 2d 518, 521, 502
N.E.2d 718 (1986) (where construction of a pension statute is
necessary, "the rule is that pension acts must be liberally
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construed in favor of the rights of the pensioner"). However,
the general rule favoring liberal construction does not permit
this court to depart from the plain meaning of the statute
itself. See Holland, 289 Ill. App. 3d at 690 (the court is not
permitted "under the guise of statutory construction, to
substitute different provisions or otherwise depart from the
plain meaning of the words employed").
There is no ambiguity in the language of section 5-129.1(a)
and thus no basis to construe the statute in the fashion Thompson
desires. Section 5-129.1(a) applies to officers with at least 10
years of service credit at retirement. Thompson's service credit
of nine years and five months is less than the required minimum.
The Retirement Board correctly did not apply section 5-129.1(a)
to Thompson when it calculated his annuity.
In the alternative, Thompson asked the Retirement Board to
prorate his annuity utilizing the 30% figure from section 5-
129.1(a) and calculate his annuity based on how close to 10 years
of service he was at retirement. However, there is no percentage
calculation in section 5-128. Section 5-128 requires that
benefits "shall" be calculated based on the officer's "credit for
age and service" on the date he retires. There is no support for
the formula Thompson seeks to apply based on the percentage set
out in section 5-129.1(a) as to officers with less than 10 years
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of service credit. Section 5-128 does not reference section 5-
129.1(a); neither section provides a distinct formula to apply
to calculate the benefits for officers with less than 10 years of
service credit.
There is no authority for Thompson's contention that section
5-129.1(a) has application in calculating his annuity benefits.
III. Diminishment or Impaired Benefits
Next, Thompson alleges section 5-129.1(a) of the Pension
Code as amended diminished and impaired his benefits. We find
not merit in this argument. In fact, the intent behind section
5-129.1(a) is just the opposite. The 2002 enactment of section
5-129.1(a) (40 ILCS 5/5-129.1(a) (West 2002)), and its 2004
amendment, would have enhanced Thompson's benefits, had he
reached 10 years of service as a Chicago police officer.
Section 5 of article XIII of the Illinois Constitution
provides that "[m]embership in any pension or retirement system
of the State, *** shall be an enforceable contractual
relationship, the benefits of which shall not be diminished or
impaired." Ill. Const. 1970, art. XIII, §5. Pension rights vest
when a person enters the pension system or when the Illinois
Constitution of 1970 became effective in 1971, whichever is
later. Hannigan v. Hoffmeister, 240 Ill. App. 3d 1065, 1073, 608
N.E.2d 396 (1992). "The plain language of the pension protection
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clause makes participation in a public pension plan an
enforceable contractual relationship" and demands the benefits of
that relationship not be diminished or impaired. People ex rel.
Sklodowski v. Illinois, 182 Ill. 2d 220, 228-29, 695 N.E.2d 374
(1998). However, there is no prohibition regarding enhancements.
Hannigan, 240 Ill. App. 3d at 1073.
Thompson entered and became vested in the pension system in
1995 when section 5-128 of the Pension Code provided the sole
basis for the calculation of his annuity benefits. The addition
of section 5-129.1(a) to the Pension Code in 2002, and its
amendment in 2004, would only serve to enhance Thompson's annuity
should he reach at least 10 years of service credit. Thompson's
nine years and five months of service did not entitle him to the
enhancement of benefits available to those officers that retire
with at least 10 years of service credit.
Section 5-129.1(a) of the Pension Code as amended did not
diminish or impair Thompson's benefits.
CONCLUSION
The Retirement Board correctly applied section 5-128 of the
Pension Code in calculating Thompson's retirement annuity. The
decision of the circuit court is therefore affirmed.
Affirmed.
CAHILL, P.J., and WOLFSON, J., concur.
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Thompson v. Retirement Board of the Poicemen's Annunity and Benefit Fund of the City of Chicago
Combined Opinion